Document Type

Article

Disciplines

First Amendment | Law

Abstract

For all practical purposes, the policy of social media companies to suppress hate speech on their platforms means that the longstanding debate in the United States about whether to limit hate speech in the public square has been resolved in favor of vigorous regulation. Nonetheless, revisiting these debates provides insights essential for developing more empirically-based and narrowly tailored policies regarding online hate.

First, a central issue in the hate speech debate is the extent to which hate speech contributes to violence. Those in favor of more robust regulation claim a connection to violence, while others dismiss these arguments as tenuous. The data generated by social media, however, now allow researchers to empirically test whether there are measurable harms resulting from hate speech. These data can assist in formulating evidence-based policies to address the most significant harms of hate speech, while avoiding overbroad regulation.

Second, reexamining the U.S. debate about hate speech also reveals the serious missteps of social media policies that prohibit hate speech without regard to context. The policies that social media companies have developed define hate speech solely with respect to the content of the message. As the early advocates of limits on hate speech made clear, the meaning, force, and consequences of speech acts are deeply contextual, and it is impossible to understand the harms of hate speech without reference to political realities and power asymmetries. Regulation that is abstracted from context will inevitably be overbroad.

This Article revisits these debates and considers how they map onto the platform law of content moderation, where emerging evidence indicates a correlation between hate speech online, virulent nationalism, and violence against minorities and activists. It concludes by advocating specific recommendations to bring greater consideration of context into the speech-regulation policies and procedures of social media companies.

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